Texas laws are sneaky. Yes, it’s legal for a passenger to drink in your car—as long as it isn’t alcohol. Yes, it’s legal for him to drink alcohol as long as your car is a taxi (and, presumably, you’re a registered, licensed cab driver!) Confused? Here’s the skinny on drinking and driving, even if they aren’t being done by the same person.

Open Container Law – The Basics

Texas is one of a majority of states that has a law against having an open container of alcohol in a vehicle. If the driver is holding or drinking from it, the charges may be aggravated and escalate to a DWI or DUI. If the passenger is drinking from it, both driver and passenger can be charged with having an open container. Even if nobody is drinking from it, if the container is within reach of the driver you may be charged with an open container violation. The good news? You can’t be arrested for the infraction, only fined.

What’s an Open Container?

An open container refers to any type of alcoholic beverage that is unsealed. It could be beer, wine or spirits in a glass, cup, bottle or can, but as long as it has been opened and some has been removed or consumed, it’s an open container.

In other words, if some or all of these criteria apply, then you may have committed an offense:

You’re the driver or registered owner of the vehicle.

You’re in the vehicle.

The vehicle is traveling or stationary on a public roadway.

A container such as a glass, bottle, cup or can is in the vehicle, somewhere in the passenger area (not in the trunk, locked glove compartment or behind the last upright seat).

The container holds or previously held alcohol of some description. Even if the container is empty, if it has contained alcohol it’s considered an open container.

The container is open or is unsealed and some of the contents have been taken out.

Exceptions to the Rule

There are some exceptions to the open container law. If you’re driving a taxi, bus or limo, or your vehicle is a motor home or RV, then your passengers are allowed to drink alcohol while you’re driving. Preferably, the open container should not be within the reach of the driver, however, to avoid any police officer feeling the urge to subject you to field sobriety tests.

If you’re driving a regular car, you can have an open container of alcohol in the vehicle only if it’s locked in a glove box or in the trunk. In cars without a trunk, it must be stored behind the last upright seat.

If You’re Pulled Over

If you’re pulled over by a police officer, the first thing to remember is that he (or she) has no automatic right to search your vehicle. You have a right to privacy that prevents him from doing so without a search warrant. Of course, that doesn’t help if the open container is in plain sight of the officer, who doesn’t necessarily have to see anyone lift the container or take a drink to lay a charge.

Whatever the officer asks you to do, remember not to blow into a breathalyzer or submit to field sobriety tests (FSTs). Stay clam, be polite and remain quiet. Beyond providing your license and registration, you aren’t required to answer any questions or engage in any discussion with the officer. If you follow these 4 simple rules your chances are good of minimizing the seriousness of the charges.

Possible Defenses

If you or a loved one is charged under the open container law, it’s important to consult with an experienced Texas criminal defense attorney as soon as possible. There are a number of potential defense arguments that can be used to try and reduce your charges, or at least ensure that if convicted the penalty you get is in line with the offense.

For example, if a passenger in the rear seat of your car chooses to open a beer and drink some of it without your knowledge, you may be able to argue that you were unaware of what was happening.

Charges and Penalties

Both the charges laid and the penalties that can be expected depend on the circumstances of the offense. In Texas, an open container violation is a Class C misdemeanor. The police are required to issue a citation for it and since it’s not an arrestable offense, you can’t be locked up for it. If the offense is aggravated by circumstances such as the driver being drunk, however, it does become an arrestable offense.